Do Your Terms of Use Hold Up In Court?

Terms of Use are something that every website must have. Even if you're just running a cheap hosting company, chances are that you have a ‘Terms of Use' blurb on your page. What you might not realize is that many sites boast Terms of Use jargon that is completely illegal.

Terms of Use: The Zappos Problem

Recently, the popular shoe retailer, Zappos, was smacked on the proverbial hand. A judge ruled that Zappos' ‘Terms of Service' were not legal. What happened? Zappos underwent a major security breach, and, as a result, was sued by many class-action lawyers representing angry customers.

Zappos defended the company's stance by pointing to the ‘Terms of Service' statement that was on the main website. As it turns out, Zappos should have required all customers to click through the Terms of Service agreement, but that's not what the company did. Instead, Zappos relied on an agreement that didn't require any kind of click through or reading on a user's part – big mistake. Zappos relied on something called a ‘browsewrap' agreement.

Terms of Use: Why Browsewrap Is a Bad Idea

When setting up Terms of Use for any site, you have two options: a browsewrap agreement and a click-through option. Browsewrap agreements assume that anyone browsing through a site has read your ‘Terms of Use.' These blurbs are often located at the bottom of a home page or somewhere else on a site. But, most people never read them, and that's why Zappos will be shelling out a lot of cash very soon.

It's a much better idea to choose a click-through option. I'm sure you've seen these before, too. A click-through agreement includes a small pop-up that is placed in front of site browsers. In order to continue using a site, browsers must click through the ‘Terms of Use,' and agree to all terms. Click-through agreements are more “in your face,” and that's why courts like these terms better.

Terms of Use: Getting the Legalspeak Right

But, it might not be enough just to post some random terms to your site. You have to make sure that those terms are legal. You can't, for example, ask people to click through and agree to giving up their first born child in exchange for making a site purchase. You can, however, place standard, and legal terms on your site.

Just make sure your legal terms are in place. To do this, I suggest (though this is not legal advice) hiring a lawyer to write up those terms for you. Then, hire a developer to make sure that all site viewers click through your terms, just so that you don't wind up in the same boat as Zappos. There's something else to consider too.

Terms of Use for Kids

Are you running a website that's targeted at teens or kids under the age of 18? You may have to adjust your terms to comply with minors. What, exactly, those terms are is tricky stuff unless you are a lawyer dealing with Internet law. So, again, it's in your best interest (unless you want to be sued) to make sure that your terms are in legal order.

Learn from mistakes that big companies like Zappos make by not repeating these blunders. Need help with your terms? Got questions? Just ask!